Les Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd - [2011] NNTTA 124

NATIONAL NATIVE TITLE TRIBUNAL

Les Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124 (1 July 2011)

Application No: WO10/1149

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Les Tullock and Others on behalf of Tarlpa – (WC07/3) (native title party)

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The State of Western Australia (Government party)

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Duketon Consolidated Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  1 July 2011

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application –whether act is likely to interfere with sites of particular significance – expedited procedure not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA)
Mining Regulations 1981
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28, [2008] FCAFC 23, [2008] ALMD 5175
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437
Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37

Solicitor for the

native title party: Mr Malcolm O’Dell, Central Desert Native Title Services

Representative of the

native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services

Solicitor for the

Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Representative of the

Government party: Ms Ros Dawson, Department of Mines and Petroleum

Representative of the

grantee party: Mr Michael Giles, South Boulder Mines

REASONS FOR DETERMINATION

On 5 May 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E53/1543 (‘the proposed tenement’) to Duketon Consolidated Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act) (‘expedited procedure notification’).
The proposed tenement comprises an area of 9.81 square kilometres located 37 kilometres south-easterly of Wiluna in the Shire of Wiluna and is 100 per cent within the Tarlpa native title claim (WC07/3 – registered from 30 April 2008). No other native title claims overlap the proposed tenement.
On 25 August 2010, Les Tullock and Others on behalf of the Tarlpa registered native title claimants (‘the native title party’) made an expedited procedure objection application (‘the application’) to the Tribunal in respect of the proposed tenement.
On 10 September 2010, Deputy President Sumner was appointed Member for the purposes of conducting an inquiry into the application. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date (5 September 2010) for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference held on 21 September 2010, the grantee party requested the matter proceed to inquiry in accordance with the standard directions, advising that the terms of the heritage agreement offered by the native title party were not acceptable and that it wished to rely on the Regional Standard Heritage Agreement (‘RSHA’) it had previously signed in accordance with the Government party’s requirements for expedited procedure notification.
Following a number of requests for amendments to directions, the Government and native title parties lodged their submissions for the inquiry into the application. The grantee party chose not to lodge submissions. The Government party lodged its contentions and evidence by 14 March 2011. On 27 and 28 April 2011 the native title party lodged a Statement of Contentions and the affidavits of William Henry Kruse, Frankie Wongawol, Jimmy Morgan and Lena Long. On 6 June 2011, following a request from the native title party and with the agreement of all parties, s 155 non disclosure directions were made with respect to these affidavits, limiting their disclosure to members of the grantee party, Government party and Tribunal Members and staff.
At the Listing Hearing of 12 May 2011 parties advised that all submissions had been lodged and agreed that the inquiry could be heard ‘on the papers’, that is, without holding a further hearing.
On 17 June 2011, I was appointed as the Member for the purposes of conducting the inquiry into the application.
I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

In Walley and Others v Western Australia and Another (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted and what limits are placed on those activities (at 449-454, [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454, [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28, [2008] FCAFC 23, [2008] ALMD 5175). I also adopt the findings of DP Sosso in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’).

Evidence in Relation to the Proposed Act

Government party documentation establishes the underlying land tenure of the proposed tenement to be Lake Way Pastoral Lease 3114/1164 with no roads or tracks located within the proposed tenement area. Mapping (including satellite imagery) provided by the Tribunal’s geospatial unit locates the proposed tenement along the western shoreline of Lake Way between the major tributary of Abercomby creek and Duck Swamp. It is clear from satellite imagery mapping that the northern portion of the proposed tenement encroaches Lake Way itself, and a larger portion is subject to seasonal overflow or “washes”.
There are no Aboriginal communities identified within the proposed tenement area. However, according to Tribunal mapping, there are two Aboriginal communities, The Village and Bondini, located some 27 and 34 kilometres north west of the proposed tenement.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘the AHA’) overlapping the area of the proposed tenement.
According to the Government party Quick Appraisal documentation, three active tenements overlap the proposed tenement: M53/458 at 8 per cent, M53/1086 at 0.2 per cent and P53/1366 at 2.4 per cent. Twelve previously granted tenements also overlapped the proposed tenement: six mineral claims granted and surrendered between 1973 and 1978, each overlapping between 0.2 and 10.6 per cent, and six exploration licences granted and surrendered or expired between 1991 and 2010 each overlapping between 0.2 and 89.5 per cent.
The Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates the grant of the proposed tenement be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [11]-[12]) and two further conditions requiring the pastoral lessee to be notified of the grant of the licence and of certain exploration activities (conditions 5-6).
The following draft Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed tenement if breached) are noted:
‘1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’
In the contentions of the Government party (at 6(d)), a further condition (‘the RSHA condition’) will be placed on the grant of the proposed tenement:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by Tarlpa, the applicants in Federal Court application no. WAD248 of 2007 (WC07/3), such request being sent by pre-paid post to reach the Licensee's address, c/- PO Box 8355, Perth Business Centre WA 6849 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of Tarlpa the Central Desert Regional Standard Heritage Agreement’
Section 66 of the Mining Act sets out what a holder of an exploration licence is authorised to do.
‘An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’
The prescribed limit for the purposes of s 66(c) is 1000 tonnes: Regulation 20 of the Mining Regulations 1981 (WA).
There is no dispute that the future act encompasses both the grant of the proposed tenement and the activities which may be carried out pursuant to it.
It is also accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely directly to interfere with the carrying on of the native title party’s community or social activities or interfere with areas or sites of particular significance to a native title party. As Member Sosso (now Deputy President) said in Silver (at [30]) following the Federal Court’s decision (French J) in Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19:
‘The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement. ... [E]vidence of intention ... is logically relevant to the question of likelihood.’
In this matter, no submissions were made by the grantee party, and as per the above, I will assume that the grantee party will fully exercise the rights conferred by the grant of the proposed tenement.

Contentions and evidence provided by the native title party

In its statement of contentions the native title party states its objection is in relation to section 237(b) of the Act and that it ‘does not seek to pursue its objection in relation to sections 237(a) and (c) of the NTA as originally identified in the Form 4 Objection’ (paras 1.3- 1.4).
In support of its statement of contentions the native title party has provided the affidavits of Frankie Wongawol sworn 20 April 2011, Lena Long sworn 20 April 2011, Jimmy Morgan sworn 20 April 2011 and William Henry Kruse sworn 28 April 2011, subject to s 155 non disclosure directions limiting their disclosure to members of the grantee party, Government party and Tribunal Members and staff (‘the restricted affidavits’). Consequently, the restricted affidavits will not be quoted in this determination.
Mr Wongawol, Ms Long and Mr Morgan state they are traditional owners in the Tarlpa native title claim area. Mr Wongawol also states he is boss for the Lake Way Area in which the proposed tenement is located. Their evidence is uncontested and I accept it. I accept they are members of the native title party claim group and have the necessary authority to speak for the area on behalf of the native title party. Mr Kruse states he is an anthropologist for the native title party and none of his affidavit (including his expertise as an anthropologist) is contested by the other parties. I am satisfied that it is appropriate to accept it (Tarlpa at [34]-[37] and cases cited therein).
The native title party contends that the AHA has a different application and effect to the intent of s 237(b) of the NTA. In particular it notes that the definition of areas of particular significance under the NTA is wider than that which would be applicable in relation to those acts which are defined in s 5 and afforded protection by s 17 of the AHA. It notes that the question of the significance of a site is determined by the laws and customs of the native title party in relation to s 237(b) of the NTA, but to the cultural heritage of the State in relation to the AHA (see clause 3.6 and 3.7). The native title party contends that reliance cannot be placed on the AHA to protect all sites or areas of particular significance if there are areas or sites which, while within the terms of s 237(b) of the NTA, do not fall within the AHA. The native title party proceeds to argue that the protection given by s 237(b) of the NTA is greater than the protection offered by s 17 of the AHA in relation to the prevention of destruction or disturbance of Aboriginal sites, including the fact that the capacity of the native title party to prevent interference or destruction is dependent upon a Ministerial discretion (paras 3.9 and 3.10). The native title party claims that, in the circumstances, the AHA and its protective regime will be insufficient to ensure that ‘interference is unlikely to occur, taking into account the nature of any site or area’, citing Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 at [34]. In assessing these submissions it must be remembered that the function of the AHA and s 237(b) of the NTA are quite different. The AHA is designed to provide a protective mechanism for all Aboriginal sites except in circumstances where, through processes which ultimately involve Ministerial discretion, a party is exempted from that requirement and given permission to interfere with or destroy a site. The purpose of s 237(b) of the NTA is to identify circumstances in which, because of the risk of interference with sites of particular significance in an area, the provisions of the NTA relating to the right to negotiate need to be applied, rather than exempted as is made possible by the application of the expedited procedure. Exemption does not of itself either make possible or prevent any interference with a site of significance, or any other site. It is not a regulatory provision, but rather identifies a circumstance in which the procedural requirements of the NTA must be complied with to the full.
The native title party makes extensive contentions in relation to the inadequacy of the proposed RSHA (see paras 3.13 to 3.22). It correctly contends that the Tribunal has found, in Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1, that the RSHA features a commitment to cooperate with the protection of Aboriginal Heritage. It is notable that that decision also came to the conclusion that while an RSHA was a factor to be taken into account when the Tribunal undertakes the task required of it by s 237 of the NTA, including the assessment of the likelihood of interference with sites of significance, it is certainly not a determinative one. The native title party proceeds to contend that in this instance the RSHA does not in fact amount to a commitment by the grantee party to cooperate in the ongoing protection of Aboriginal heritage, on the grounds that:
(a)No survey is required in circumstances where the activity is determined by the grantee party to be ‘non-ground disturbing’;
(b)A heritage survey, when conducted in relation to ground disturbing activity, does not require the consent of the native title party before that activity may be permitted to proceed;
(c)The RSHA does not require the consent of the native title party before a s 18 application might be brought under the AHA by the grantee party;
(d)The definition of non-ground disturbing activity is inadequate and could well amount to interference with sites of particular significance; and
(e)The RSHA does not have any protection for sites which might be gender sensitive.

At paras 3.23-3.28 the native title party sets out to particularise its concerns with the grant of the proposed tenement on the basis that such a grant is likely to lead to interference with sites of particular significance. As I understand it, the native title party’s primary argument is that the Lake Way area, which includes the Lake, its shoreline, and associated creeks and soaks, are areas of great significance to the native title party, and the geographical features associated with the Lake and its surrounds are the physical manifestations of the ongoing presence of the Jukurrpa in the area. Particularly, the native title party asserts that a portion of the tenement intrudes into Lake Way, citing the affidavit of Mr Morgan at paras 9-11.
Further, relying on the restricted evidence of Mr Robert Wongawol, Mr Kruse and Mr Frankie Wongawol, the native title party contends that the Lake Way area is site rich, that at least four different jukurrpa cross the area, and that the area contains ceremonial grounds of great significance to the native title party. At para 3.25 of the native title party’s contentions they observe ‘the fabric of the country on, and immediately adjacent to, the Tenement is imbued with a pervasive spirituality such that any entry onto the relevant land, which has not been agreed with the native title party, would be likely to result in interference within the meaning of paragraph s 237(b)’.
The native title party contends that the RSHA would be inadequate to protect these sites of particular significance because it only countenances heritage surveys being conducted at a ground disturbing stage and that any access to the area the subject of the tenements by the grantee party without the guidance of the native title party is likely to lead to interference with the sites of particular significance which they have identified. Similarly, the RSHA does not accommodate the need for access to information about protecting particular sites within the area which may be gender sensitive.

Sites of Particular Significance (s 237(b))

In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (ie more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there are no registered sites within the proposed tenement area, but this does not mean there may not be sites or areas of particular significance to the native title party over the proposed tenement area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Without disclosing the contents of the restricted affidavits, it is clear from the deponent’s statements that the area defined as ‘the Lake Way Area’, which includes the proposed tenement, is an area of particular significance to the native title party and to the wider Martu culture to which it belongs. Further the affidavit of Lena Long makes it clear that the Lake Way Area is a place which is highly gender sensitive. Ladies can not only not go there, they must not talk about it. The Lake Way Area comprises a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to Martu religion. It is also clear from the careful language used by the deponents that cultural information regarding the Lake Way Area is extremely sensitive and restricted to certain members of the native title party. Under Martu traditional law and custom, those certain members have an enforceable obligation to monitor and control any person’s access to and activities within the Area, and that failure to fulfil that obligation, even if they were unable to do so due to circumstances outside of their control, has resulted, and will continue to result in corporal punishment.
In making its predictive assessment the Tribunal must pay particular attention to the specific details of each matter that comes before it. In this matter the evidence of the native title party, which is uncontested, establishes that there are areas of particular significance in and around the area of the proposed tenement. Even if the grantee party does enter into a RSHA, it is my view that there will still be a likelihood that interference might occur. The reason that this interference might occur is because the RSHA only requires the conduct of surveys in circumstances where ground disturbing activity is taking place. As is clear from the evidence of the native title party, the sites of particular significance to them are, amongst others, a variety of Dreaming tracks associated with the jukurrpa that cross the area both of the proposed licence and the Lake complex itself. By their very nature, those tracks are not sites which might be readily identifiable by persons other than those instilled in the mysteries of the jukurrpa. Therefore, notwithstanding the best of intentions, inadvertent interference is distinctly possible if the grantee party enters the area without guidance from the native title party. In such circumstances, without the consultation that is afforded by the right to negotiate provisions of the Act, there is a real risk that sites of particular significance to the native title party will be interfered with by the grantee party if the proposed tenement is granted on the terms suggested by the grantee party and the Government party.

Sections 237(a) and 237(c)

The native title party has not adduced any evidence or made any contention that either of these limbs of s 237 are attracted in the particular circumstances of this matter. In any event, on the basis of my finding in relation to s 237(b), it is not necessary for me to further consider those sections.

Determination

The determination of the Tribunal is that the grant of exploration licence E53/1543 to Duketon Consolidated Pty Ltd is not an act attracting the expedited procedure.

Daniel O’Dea
Member
1 July 2011